In the employment context, the situation may arise where there is a link between mental illness and disciplinary action.Employers must deal carefully with these situations, as if they are not correctly managed, this can give rise to significant risks and liability.
The Labour Relations Act draws a distinction between misconduct and incapacity. In a previous post, we explained the distinction. Where and employee suffers from incapacity due to ill health including mental health issues, the employer is required to undertake and incapacity process which involves consultation and an attempt to reasonably accommodate the employee. In misconduct scenario on the other hand the employer may initiate disciplinary action against the employee by convening a disciplinary hearing.
But what happens when mental illness and disciplinary action intersect? For example, an employee’s misconduct may be the result of a mental illness issue. In that scenario, should the employer approach the matter as an incapacity issue by convening an incapacity inquiry, or should the employer convene a disciplinary hearing?
This is the issue that confronted the Labour Appeal Court in the case of Legal Aid Board v Jansen. In that matter, the court expressed the distinction as follows:
“ In the first instance, depression must be looked at as a form of ill health. As such, an incapacitating depression may be a legitimate reason for terminating the employment relationship, provided it is done fairly in accordance with a process akin to that envisaged in Items 10 and 11 of the Code of Good Practice: Dismissal. If an employee is temporarily unable to work for a sustained period due to depression, the employer must investigate and consider alternatives short of dismissal before resorting to dismissal. If the depression is likely to impair performance permanently, the employer must attempt first to reasonably accommodate the employee’s disability. Dismissal of a depressed employee for incapacity without due regard and application of these principles will be substantively and/or procedurally unfair.
 Depression may also play a role in an employee’s misconduct. It is not beyond possibility that depression might, in certain circumstance negate an employee’s capacity for wrongdoing. An employee may not be liable for misconduct on account of severe depression impacting on his state of mind (cognitive ability) and his will (conative ability) to the extent that he is unable to appreciate the wrongfulness of his conduct and/or is unable to conduct himself in accordance with an appreciation of wrongfulness. Should the evidence support such a conclusion, dismissal for misconduct would be inappropriate and substantively unfair, and the employer would need to approach the difficulty from an incapacity or operational requirements perspective. Alternatively, where the evidence shows that the cognitive and conative capacities of an employee have not been negated by depression, and he is able to appreciate the wrongfulness of his conduct and act accordingly, his culpability or blameworthiness may be diminished by reason of the depression. In which case, the employee’s depression must be taken into account in determining an appropriate sanction. A failure to properly take account of depression before dismissal for misconduct could possibly result in substantive unfairness.
 Conative ability is a question of fact and an employee denying conative ability, as the respondent in effect does, bears an evidentiary burden to prove the factual basis of the defence. To hold otherwise would unduly undermine the managerial prerogative of discipline where misconduct is committed by employees suffering all manner of mental difficulties such as depression, anxiety, alcoholism, grief and the like. As explained, the fact that an employee was depressed, anxious, grieving or drunk at the time of the misconduct (but not entirely incapacitated thereby) is most appropriately viewed as a potential mitigating factor diminishing culpability that may render dismissal for misconduct inappropriate or may require an incapacity investigation before dismissal. That much is trite.”
In essence, whether or not an employee’s mental illness is the main issue or whether or not the case is one of misconduct, depends on the facts. No two cases are the same and the question is whether the employee had the ability to appreciate the wrongfulness of his or her conduct and to act in accordance with that appreciation.